Re Don

[2006] NSWSC 1125

CITATION:	Re Don [2006] NSWSC 1125
HEARING DATE(S):	9 October 2006 11 October 2006
JUDGMENT DATE :	26 October 2006
JUDGMENT OF:	Sully J at 1
DECISION:	Summons dismissed; Plaintiff to pay costs of 2nd defendant; No order as to costs of 1st, 3rd and 4th defendants
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Supreme Court Act (1970) NSW Civil Procedure Act 2005 (NSW)
CASES CITED:	Craig v South Australia (1995) 184 CLR 163 Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 Arkell Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Soulmezies v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247
PARTIES:	Re: 'Don'
FILE NUMBER(S):	SC 2006/14035
COUNSEL:	E. Lawson - Plaintiff P. Singleton - 2nd Defendant V. Hall (solicitor) - 3rd Defendant J. McCaffrey (solicitor) - 4th Defendant
SOLICITORS:	R. J. Parkinson - Plaintiff I. V. Knight - 2nd Defendant V. Hall - 3rd Defendant J. McCaffrey - 4th Defendant
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	w1401 064/06
LOWER COURT JUDICIAL OFFICER :	A. Sinclair LCM
LOWER COURT DATE OF DECISION:	4 July 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

26 October 2006


2006/14035 – RE “DON”

JUDGMENT


HIS HONOUR:

[NOTE:

· This hearing was conducted in a closed Court

· A non-publication order has been made. It prohibits the publication of any of the names of the child “Don” or either of his natural parents, or of any other information by which any of those persons might be identified.]

Introduction

1 By an amended summons filed on 5 September 2006 a plaintiff, who has been given by the Court the pseudonym, “Ms B”, claims the following relief:

“1. An order in the nature of a prerogative writ of certiorari quashing the decision of the first defendant at Cobham Local Court on the 4th of July 2006 to set aside the subpoena issued 18th of May 2006 at Katoomba Court House.
2. An order that this matter be remitted to the Children’s Court and dealt with according to law.
3. In the alternative, a declaration that the first defendant on the 4th of July 2006 made an error of law in determining whether the subpoena should be set aside.
4. A declaration that the first defendant at Cobham Local Court on 4th of July 2006 failed to give adequate reasons for the refusal to grant the plaintiff access to the subpoenaed material.”

2 The summons contains the following statement of what are there described as: “Appeal Grounds”:

1. The first defendant made an error of law on the face of the record of the proceedings. The first defendant applied the incorrect test when determining whether the subpoena issued 18 May 2006 at Katoomba Court House should be set aside.
2. The first defendant failed to consider the application of section 109 of the Children and Young Persons Care and Protection Act 1998 which provides that the Criminal Procedure Act 1986 applies in respect of production of documents in the Children’s Court.
3. The first defendant did not give adequate consideration to the relevant authorities in determining whether the subpoena issued 18th of May 2006 should be set aside.
4. The first defendant did not give adequate reasons for setting aside the subpoena.”

3 Four defendants are cited. The first defendant is the Children’s Court Magistrate against whom the summons claims actual relief. The second defendant is the Director-General, NSW Department of Community Services. The third defendant is a named solicitor duly appointed as the Separate Legal Representative of the child who has been given by the Court the pseudonym, “Don”. The fourth defendant, who has been given by the Court the pseudonym, “Mr. L”, is the natural father of “Don”. “Don’s” natural mother is the plaintiff, “Ms B”.

4 The first defendant filed a submitting appearance in the usual form. Each of the other three defendants was legally represented at the hearing in this Court. The third and fourth defendants supported the plaintiff and adopted, broadly speaking, the submissions that were put for the plaintiff. The second defendant, by learned counsel, opposed the entirety of the plaintiff’s claim.

The Proceedings in the Children’s Court

5 The child “Don” was born on 4 February 2006. On 20 April 2006, when “Don” was not quite 3 months of age, an application concerning his care and protection was made to the Children’s Court. The applicant was a Delegate of the second defendant.

6 A copy of the application as filed is included, as item 1(a) in a folder of materials tendered by the plaintiff and marked, excluding submissions and copies of decided cases, as Exhibit P1. It is not happily expressed. Page 1 of the application contains a section headed: “Types of Orders Sought. Interim.” The section contains a number of boxes and accompanying items, two of which have been ticked. One of those two says: “Order allocating parental responsibility to Director-General” and has a reference to section 79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the CYP Act”). The other of the two says: “Removal of child or young person pursuant to order of the court” and adds a reference to section 48 of the CYP Act.

7 Page 2 of the application contains a corresponding section covering any desired Final Orders. None are ticked.

8 Page 2 contains, immediately following this unticked section, a heading: “FINAL ORDERS SOUGHT”. Typed beneath that heading is:

“I hereby make application to the Children’s Court for the following final orders:
[and after a gap on the page]
DETAILS OF REGISTRATION
See attached care plan.”

9 There follows a further and substantial blank space, and then a heading: “GROUNDS”. Here, once again, a series of items is tabulated, each being accompanied by a box for ticking. One item only is ticked. It reads:

“the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living.”

10 The remainder of the application contains, among other things, a statement that it is “accompanied by a supporting affidavit in accordance with the Rules and/or Regulations”

11 A copy of that affidavit is included as item 1(d) in Exhibit P1; but for reasons which will become apparent, I do not believe that it is necessary to refer in any detail to the contents of the affidavit.

12 The application was returnable originally at the Cobham Children’s Court at 9.30 a.m. on 21 April 2006. The subpoena with which the present summons is concerned was issued on 18 May 2006 and was returnable at the said Children’s Court at 9.30 a.m. on 2 June 2006. On 4 July 2006 the application was listed, part-heard, before the first defendant. An application was made by the second defendant to set aside the subpoena and, having heard submissions, the first defendant made an order setting the subpoena aside.

The Subpoena and its Setting Aside by the First Defendant

13 The subpoena as originally issued and served called for the production of the following items:

“All reports, files, notes, records and findings in relation to allegations of misconduct by former Caseworker at Penrith, Mr. William [Bill] Clements against (Ms B) d.o.b [stated but not now reproduced].”

14 Upon the formal making by learned counsel for the second defendant to the first defendant of an application to set aside the subpoena, a great deal of spirited argument ensued. The up-shot of it was that the solicitor then appearing for the plaintiff narrowed the call made by the subpoena to a call for a report made by one Joy Woodhouse following an internal Departmental investigation conducted by her in connection with the alleged misconduct of Mr. Clements against Ms B.

15 Further argument ensued, and at its conclusion the first defendant gave ex tempore an oral ruling which it is convenient to reproduce in full:

“HER HONOUR: Mr. Parkinson, the solicitor who appears in these proceedings for the mother, issued a subpoena to the Department of Community Services, originally returnable on 2 June but ultimately adjourned to today seeking “all reports, files, notes, records and findings in relation to allegations of misconduct by the former case-worker at Penrith, Mr. William (Bill) Clements against Miss … (not transcribable)…B, the date of birth, 9th of the eleventh 1981. During the argument in relation to the subpoena this morning, the items sought to be produced in response to the subpoena have been narrowed so that Mr. Parkinson seeks to have produced the report by Joy Woodhouse relating to the investigation into misconduct by that case-worker.
Mr. Parkinson puts forward three matters which he says are legitimate forensic purposes requiring production and thereafter access to that report, the first being Miss B’s parenting history; the second perceived conflict of interest on behalf of DOCS officers. And thirdly the reasons for her relapse into drug-use.
His application for production and thereafter access to that report is supported both by Miss Hall who appears for the child, and by Mr. McCaffery who appears for the father.
In order for the document to be produced it is for the , Mr. Parkinson on behalf of the mother, to demonstrate a legitimate forensic purpose requiring production of that document. Mr. Parkinson’s submissions refer to Seline’s(?) case which requires production if it’s “on the cards” that the document might provide relevant material. That of course was a criminal prosecution and the matter before the court today is a civil matter.
Mr. Singleton has referred the court to the civil authorities including Harvey v The State of New South Wales which refer to former decisions which indicate that in relation to civil matters concrete grounds of belief, or definite grounds to believe that the material will assist their case if the party are required to demonstrate a legitimate forensic purpose.
In my view the legal representative of the mother has not demonstrated definite grounds to believe that the report of the misconduct into the DOCS worker who has no input personally into the proceedings in relation to…(“Don”)… that the material relating to that report will assist his case.
I have indicated that although documents already filed in this matter do go back to 1999 or Mr. Parkinson has referred to 1994, that what will concern the court will be the interests of the child, …(“Don”)…, and what’s in his best interest that he being a child born in February of this year.
I note that the interaction between the now-resigned case-worker and Ms “B” is said to have occurred between December 2004 and April 2005 which would appear to be after the removal of her two older children and prior to the birth of “Don”.
In relation to what’s been referred to as the “conflict of interest” issue the now-resigned DOCS officer is not to be called in these proceedings. He has no input into the proceedings in relation to “Don”. It’s a matter for the legal representatives concerned what questions are put to the witnesses that are called by the Department but on the material before me I am not satisfied that there are definite grounds to believe that production of this report will advance that issue.
And the reasons for relapse in my view could not be contained within that report. It is a report in relation to the conduct of another person. It relates to matters which occurred between December 2004 and 2005. There is material already contained in the documents that have been served, both from Ms B and others that sets out why she says that relapse took place.
I am not satisfied that the party issuing the subpoena has established, as I said, concrete grounds for belief in relation to each of the three matters set out as said to demonstrate legitimate forensic purpose.
AND THE SUBPOENA IS SET ASIDE.”

[The reference to “Seline’s (?) case” is a reference to R v Saleam (1989) 16 NSWLR 14]

16 As previously herein noted at paragraph 2, there are four challenges now made to that ruling. It is convenient to deal with them as thus stated by the plaintiff.

The First Challenge

17 The challenge is:

“The first defendant made an error of law on the face of the record of the proceedings. The first defendant applied the incorrect test when determining whether the subpoena issued 18 May 2006 at Katoomba Court House should be set aside.”

18 The first thing that needs to be defined clearly is the scope of what is embraced by “the face of the record of the proceedings”. It is submitted by learned counsel for the second defendant that in the present particular case the relevant record is constituted in part by the application filed on 20 April 2006 by the Delegate of the Second Defendant; in part by the subpoena; and in part by the expressed reasons, as quoted previously herein, of the first defendant. In my opinion that submission is plainly correct, having regard to the relevant propositions which are established by the decision of the High Court of Australia in Craig v South Australia (1995) 184 CLR 163; and to the provisions of sub-sections (3) and (4) of section 69 of the Supreme Court Act (1970) NSW.

19 The test actually applied by the first defendant was whether the plaintiff had: “demonstrated definite grounds to believe that the report of the misconduct into the DOCS worker who has no input personally into the proceedings in relation to (“Don”) that the material in that report will assist (her) case”.

20 In considering whether, as the plaintiff now asserts, that test was erroneous in law, it is relevant to have regard, first, to certain provisions of the CYP Act.

21 Sections 7, 8 and 9 of the Act are included in Part 1 of Chapter 2.

22 Sections 8 and 9 of the Act set out what are described as the “objects” and the “principles” of the Act. Both the “objects” and the “principles” are broadly stated propositions of philosophy and sociology rather than precisely framed propositions of law. Any doubt on that score would seem to be set at rest, both definitely and definitively, by the completely clear words of section 7:

“The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law.”

23 Chapter 6 of the Act contains sections 92 through 109. Sections 93 and 94 provide:

“93 General nature of proceedings
(1) Proceedings before the Children’s Court are not to be conducted in an adversarial manner.
(2) Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.
(3) The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.
94. Expedition and adjournments
(1) All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.
(2) For this purpose, the Children’s Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person.
(3) The Children’s Court may give such directions as it considers appropriate to ensure that the timetable is kept.
(4) The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that:
(a) it is in the best interests of the child or young person to do so, or
(b) there is some other cogent or substantial reason to do so.”

24 It can be allowed at once that even such broadly expressed provisions as those of sections 93 and 94 do not permit a Children’s Court Magistrate to decide cases, or issues within cases, on a merely idiosyncratic basis that is quite divorced from appropriate principle, correctly understood and fairly applied. What the provisions do require, however, is the maximum flexibility and speed appropriate to the particular case or issues. An analogous concept informs, for example, the provisions of section 56(1) of the Civil Procedure Act 2005 (NSW) which defines “the overriding purpose” of that Act and of related subordinate legislation as being “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. The first defendant, in dealing with the particular subpoena issue, was bound by sections 93 and 94. It is only fair to acknowledge that fact when examining the minutiae of the first defendant’s expressed reasons for the decision to set the subpoena aside.

25 In recent years there have been repeated attempts by appellate Courts and by Judges sitting at first instance to crystallise principles by reference to which any dispute concerning the permissibility of a particular subpoena for the production of a document must be determined. Any attempt to draw out of those decisions a body of fixed principles which are of universal application is, in my view, unhelpful and unproductive in a case of the present kind. Some of the antecedent authorities deal with criminal cases; others deal with civil cases, the category into which the present matter plainly falls. Some of the antecedent decisions turn upon there having been made an objection, based upon a claim of public interest immunity privilege, to the upholding of a particular subpoena: no such claim is made in the present case. Some of the antecedent authorities deal, not with a threshold objection to the propriety of a subpoena to produce, but with a subsequent application by the party issuing the subpoena to be given access to material in fact produced to the Court in answer to the subpoena.

26 All of that said, it is possible to discern the following principles as being applicable in a case of the present kind:

[1] A person upon whom, or a body or instrumentality upon which, a subpoena calling for the production of documents has been served is always entitled, whether an actual party or a stranger to the particular principal proceedings, to move to set aside the subpoena;

[2] In the case of any such motion, it is for the objector, as the moving party, to show cause affirmatively and on the probabilities for the setting aside of the subpoena;

[3] In the face of such an application to set aside the subpoena, the issuing party, in order to defeat the application, must be able to identify, and the relevant Court must insist that there be precisely identified in fact, some legitimate forensic purpose, the existence of which can fairly be regarded as justifying the call which the challenged subpoena makes;

[4] Whether or not such a forensic purpose, as thus identified, ought to be accepted as justifying the call made by the subpoena must depend upon the nature of the issues for trial, as those issues appear at the time of the challenge to the subpoena. It is entirely possible that the issues for trial will change as the principal proceedings unfold; and that any such change might well entail that a call made by a subpoena and previously disallowed, becomes allowable either in whole or in part;

[5] In attempting to relate an identified forensic purpose to relevant issues for trial and thereby to assess the legitimacy of the identified purpose, it seems to be regarded on all hands as trite that the carrying out of what is conventionally described as a “fishing expedition” is not a legitimate forensic purpose. As the learned authors of Ritchie’s Uniform Civil Law and Procedure point out at vol. 1 p 7996: “…… This pejorative has been accorded such a fluid interpretation, that its use perhaps more obscures than illuminates the principles involved” . That observation follows upon a reference to the judgment of Owen J, as he then was, speaking for the Full Court of this Court in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254:

“…….But whether a particular expedition is a mere “fishing expedition” depends upon the meaning of that phrase. A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere “fishing expedition”.
[6] “Fishing” aside, and as explained by Mahoney AP in Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 182:

“……. To have access to the subpoenaed document, the party must show or it must appear that the document is relevant to the issue for decision. But mere relevance is not enough: thus, it is not enough for the party to show only and without more that the document plainly shows and shows only that his case cannot be made out. It is not enough for the party to say: “The documents are relevant in the sense that prima facie they establish the case against me: therefore I am entitled to see them and to tender them”.
In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing “that there are reasonable grounds for” the “suspicion or belief” referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say “the document is relevant because, if it does anything, it establishes the case against me”. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: “I wish to see the document to see if it may assist my case”. That, in my opinion, is not sufficient.”

[7] The same propositions, but with a different focus, were examined by Rogers CJ in Comm. Div. in Arkell Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 at 556:

“Admittedly, in Science Research Council v Nasse [1980] AC 1028, the House of Lords, and in Dolling-Baker v Merrett [1990] 1WLR 1205, the Court of Appeal were concerned with applications for production and inspection of documents under the English rules of court. Nonetheless, it seems to me, that there is utility in considering the approach made by the two tribunals in those cases. In Science Research Council v Nasse , the House of Lords held that relevance alone, though a necessary ingredient, did not provide an automatic test for ordering discovery. According to their Lordships, the ultimate test was whether discovery was necessary for disposing fairly of the proceedings. I need to point out at once that, by the Rules of the Supreme Court (UK), O 24, r 13, it is specifically provided that no order for production of documents for inspection, or to a court, shall be made “unless the court is of the opinion that the order is necessary, either for disposing fairly of the cause or matter, or for saving costs”. That, it seems to me, should be the criteria whereby courts should approach applications in relation to setting aside subpoenas, discovery and inspection. There should only ever be the one true guide. Obviously, if a document is not relevant, it cannot be necessary for disposing of the cause. Obviously, if the document does not open up a new line of enquiry, it cannot be necessary. But merely because it is relevant, or opens up a new line of inquiry, does not make it necessary.”

27 In applying those several propositions to the given facts of the present case, my views and conclusions are as follows:

[1] The first defendant correctly required of the plaintiff’s then representative a precise identification of any asserted legitimate forensic purpose. Three were nominated. It is not now submitted that the first defendant misapprehended what they actually were.

[2] The essential issue for trial was whether ”Don” can be shown by the second defendant to be “suffering or ……….. likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment” in which he was living, or in which it was proposed that he would be living, as at the date of the making of the application.

[3] No doubt, the history of Ms B’s parenting, both in relation to “Don” and in relation to “Don’s” older infant siblings is relevant to the fair resolution of that issue in a way best conducing to the proper care and protection of “Don”. But how, it has to be asked, are the contents of Miss or Mrs. Woodhouse’s report likely to be able to bolster the plaintiff’s case on the principal issue? The relevant dealings between the plaintiff and Mr. Clements all appear to have occurred prior to “Don’s” birth; and to have ceased some 9 months prior to that birth. Let it be supposed that the contents of the report make assertions or findings which, if now accepted as reliable, shed some light upon Ms B’s parenting deficiencies. How can that outweigh the current significance to “Don” of those deficiencies as they now actually exist? In my opinion it cannot.

[4] The same reasoning is applicable, also, to the identified purpose of examining the reasons for Ms B’s relapse into drug addiction. It might very well be that the report contains material from which there might properly be drawn inferences capable of explaining the relapse and of explaining it in some way not wholly disadvantageous to Ms B. That is not, however, really to the point. It seems to be uncontroversial that in fact Ms B has relapsed into drug addiction. Two related questions become, thereupon, relevant. One is: what is the existing effect of that particular condition upon “Don’s” proper care and protection? The other is: what does properly qualified medical and behavioural expert opinion evidence have to say about future probabilities in connection with that topic? I do not see that there is any reason to think that the report, however sorry for Ms B one might feel after having read it, can have any real bearing upon those two questions.

[5] As to the “conflict of interest” point, it does not seem to be controversial that, as the first defendant says, the relevant DOCS officer “had no input” into the decision to make the application of 20 April 2006, or into the progress of those proceedings. In that event, wherein lies the asserted conflict of interest? And whose conflict actually is it said to be: that of the second defendant; that of some person(s) for whom the second defendant is vicariously responsible; that of DOCS in general; that of the relevant particular office of DOCS? I can discern nothing in the record, and nothing in the evidence now put before me, that answers convincingly any of those questions, and does so in a way relevant to what is now best to be done, in the circumstances as they now actually exist, in order to provide properly for the care and protection of “Don”.

[6] It is true that the first defendant did not analyse as I have done the questions that had to be decided in connection with the challenged subpoena. It is true, as well, that the first defendant spoke of “definite grounds” , or synonymously of “concrete grounds” , thereby provoking the arguments which occupied much of the hearing in this Court about prior curial decisions. In my opinion, however, a fair reading of the recorded reasons as a whole justifies the conclusion that the first defendant asked, essentially, the correct question, namely: had it been demonstrated in a real way that the contents of the report had the potential to strengthen the plaintiff’s case on the true issue for trial in the Children’s Court proceedings, so that the interests of justice, assessed realistically in the light of that true issue in the setting of the statutory requirements of, in particular, sections 93 and 94 of the CYP Act , required the amended call made on the subpoena to be upheld?

28 For the whole of the foregoing reasons I have come to the conclusion that the first defendant did not apply, judging the matter on the face of the relevant record, an incorrect test.

The Second Challenge

29 The challenge is:

“2. The first defendant failed to consider the application of section 109 of the Children and Young Persons Care and Protection Act 1998 which provides that the Criminal Procedure Act 1986 applies in respect of production of documents in the Children’s Court.”

30 Section 109 of the CYP Act provides:

“ 109 Application of Criminal Procedure Act 1986 to secure attendance of witnesses and the production of documents
The provisions of the Criminal Procedure Act 1986 relating to warrants and subpoenas for the attendance of witnesses in proceedings before a Local Court for offences punishable on summary conviction apply to:
(a) the attendance of witnesses in proceedings before the Children’s Court, and
(b) the production of documents in proceedings before the Children’s Court,
in the same way as those provisions apply to the attendance of witnesses in proceedings for such offences.”

31 These provisions do not entail that the proceedings before the first defendant became in some way transformed from civil proceedings into criminal proceedings with the consequence that the testing of any asserted legitimate forensic purpose fell to be considered upon some other and more relaxed principle than the principles that I discussed in the preceding section of my present reasons.

32 Section 109 is facultative. It makes available to the Children’s Court the power to issue a subpoena; to enforce the subpoena after it has been issued and served; and to set the subpoena aside. The subpoena, when issued, remains a subpoena in a civil case, and any dispute about the subpoena falls to be decided upon that footing.

33 In my opinion this challenge has not been made good.

The Third Challenge

34 The challenge is:

“The first defendant did not give adequate consideration to the relevant authorities in determining whether the subpoena issued 18th of May 2006 should be set aside.”

35 I do not agree. That the reasons as recorded are brief and make only two glancing references to curial authorities, cannot by itself be sufficient to carry this particular challenge. Any proposition that a more detailed analysis of authorities would have made clear to the first defendant that the stated test was erroneous in law, cannot succeed in the light of my own conclusion that the test was not so erroneous. That the first defendant did not refer in a precise and detailed way to every authority cited and to every submission made about every such authority, cannot carry the present challenge. What counts for present purposes is what the first defendant did in fact say. If what was thus said discloses error of law, then the error is amenable to correction, and vice versa. In either case, it is the conclusion reached, rather than the degree of attention given to the authorities in reaching the conclusion, that matters.

36 In my opinion this challenge, also, has not been made good.

The Fourth Challenge

37 The challenge is:

“The first defendant did not give adequate reasons for setting aside the subpoena.”

38 I take the relevant principles to be encapsulated in the following passages taken from the judgment of Mahoney JA in Soulmezies v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 272, 273:

“In considering what reasons must be given and what a judge does in writing a judgment, it is relevant to distinguish between the essentials and the peripherals. For example, where there is an appeal from his order, it is proper that the judge make apparent those matters which should be apparent if the right of appeal is to be exercised by the unsuccessful party and if the appellate court is to be able to do what, in the particular appeal, it should do.
And specific findings may be necessary to ground the power of the trial judge to make the order that he has made. In some cases, the court has power to alter the rights of parties if and only if particular jurisdictional facts are found. In such cases, it may be necessary – at least it will be expected – that findings on those facts be made. The failure to find them may, in courts other than superior courts, constitute defects of jurisdiction to which prerogative relief will go.
But the function of reasons is not limited to formal matters such as appeal and jurisdiction. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd , I pointed out that, even where there is no appeal, the provision of reasons may be required: I saw that deriving from the nature of the judicial process itself and, consequently, as being an incident of it. I meant by this that, in general terms, the giving of reasons is seen as part of the process of deciding a matter judicially rather than in the course of other and different forms of decision.
But, as I there said and was subsequently pointed out by Gibbs CJ in Public Service Board of New South Wales v Osmond , the provision of reasons is not expected in every case where a judicial decision is made. The reason why reasons will be required in one case and not in another will be determined by the nature of the case and what is done in it. The court’s order is a public act. The judgment given for it is a professional document, directed to the parties and their professional advisers. It may, in a particular instance, delineate, develop or even decorate the law but that is peripheral and not essential to its nature.
There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judgment must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law: see R v Associated Northern Collieries (1910) 11 CLR 738 at 740 – by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.
To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the reasoning process. In the present case, as I have said, the objection made to what the judge did is that he did not explain, or explain with sufficient clarity, how the CAT scan could and did lead him to the conclusion that after 17 January 1984 the worker’s condition changed. Conclusions of that kind are not arrived at by syllogisms. Syllogisms may lead to a conclusion of that kind: more often, their role (if they have one) is as the auditor of the reasoning processes and of the conclusions already arrived at by other processes.”

39 Applying those principles to the recorded reasons of the first defendant, I am unpersuaded that there are any vitiating deficiencies in the expression of those reasons. Some allowance must sensibly be made for the fact that the reasons were given ex tempore, and that it is fairly to be inferred that such an approach is explained in part by the interlocutory nature of the ruling; in part by the comparatively straightforward issues in connection with the subpoena; and in fact by the procedural requirements of the CYP Act itself. It is trite that merely to establish that reasons could have been more fully expressed is insufficient to carry the present challenge.

40 That challenge has not been, in my opinion, made good.

Conclusions and Order

41 For the whole of the foregoing reasons I am of the opinion that none of the grounds notified in the summons has been established. There is no other basis justifying the granting of any of the claims for relief as articulated in the summons.

42 I therefore make the following orders:

1. The summons is dismissed.

2. The plaintiff is to pay the costs of the second defendant.

3. No order as to the costs of the first, third and fourth defendants.

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